# Trinity Lutheran Church of Columbia, Inc. v. Comer **URL:** \ **Category:** Great Debates\ **Created:** [April 7, 2017, 5:15pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994 "2017-04-07T17:15:53Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![rat\_avatar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rat_avatar/32/255_2.png) [@rat\_avatar](https://boards.straightdope.com/u/rat_avatar)\ **Post date:** [April 11, 2017, 2:23am UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/41 "2017-04-11T02:23:08Z")
> [@Iggy](#): > > Not sure that point is being missed. > > Whether by bureaucratic decision, regulation, law, or state constitution mandate an outcome that specifically advantages or disadvantages a person or group solely because of their religious nature (or lack thereof) violates First Amendment protections. > > In this instance there seems to be no real debate that the deciding factor to deny Trinity’s application was their religious nature. Had they been a non-profit neighborhood beautification group with all else in their application the same then their application would have been approved. Religion was the deciding factor to act against the group. > > SCOTUS has unanimously ruled in [something of the reverse](https://en.wikipedia.org/wiki/Torcaso_v._Watkins), that a state constitutional mandate specifically favoring those making a religious statement of faith violates the US Constitution’s First Amendment\*. Not a far stretch to say a state constitution mandate disfavoring a group solely based upon its religious nature also fails on First Amendment grounds. > > The fact that Trinity is not compelled to apply for the state playground assistance program cannot possibly be an excuse for barring them from the program by state-imposed criteria forbidden by the Constitution. > > Putting the requirement in the State Constitution gives it no special protection. Many states enshrined bans on same sex marriage in their state constitutions. That mattered not one bit when SCOTUS ruled in _Obergefell_. > \*_Torasco v, Watkins_. The Court also noted 14th Amendment violation on equal protection grounds. Are you intuitionally ignoring the establishment clause? Also this logic doesn’t work in this case at all: > [@](#): > > SCOTUS has unanimously ruled in [something of the reverse](https://en.wikipedia.org/wiki/Torcaso_v._Watkins), that a state constitutional mandate specifically favoring those making a religious statement of faith violates the US Constitution’s First Amendment\*. Not a far stretch to say a state constitution mandate disfavoring a group solely based upon its religious nature also fails on First Amendment grounds. Because once again the establishment clause…which is in the 1st amendment BTW. Also there is no question before the court relating to the question of if they would have been denied had they not been a school founded on proselytization. That will really not play much of a role in this case at all. The opposition directly calls it out in their brief. > [@](#): > > Missouri’s constitution, adopted in 1945, includes > a specific limitation on the State’s granting > of funds to churches: The question is between the Lemon and Locke cases. More specifically if Locke applies to direct payments (which the original case did not) or if the Lemon test applies in these cases. The question before the court is: > [@](#): > > Whether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses **when the state has no valid Establishment Clause concern.** (bolding mine) The plaintiff claims that there is no “valid Establishment Clause concern” and the state argues that there is. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [April 11, 2017, 2:47am UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/42 "2017-04-11T02:47:55Z")
I raised Torasco and Obergefell to refute the argument that somehow having the restriction written into the state constitution makes a difference. Clearly that is not sufficient in and of itself to rule in the state’s favor. In Torasco the Court was invited to rule on several grounds. They found First Amendment Establishment Clause was adequate and chose not to deal with the other grounds. No reason to reach the question if the decision is made on other grounds. If the court considers already that there is no Establishment Clause issue, that if the state does fund the playground enhancement at Trinity it is not Establishing a Religion, then it simplifies this argument. Is the negative state action taken against Trinity based upon their religious practice? Sure it is. Straight up First Amendment, but not necessarily touching Establishment. The state may not make a law that disfavors Trinity solely because of their free practice of their religion. There was much consideration that Obergefell would come down to traditional scrutiny level. The court found another way to deal with it. Just becasue Lemon or Locke seem the obvious approach does not mean the court must go down that path. This case is no more destined to be Lemon vs Locke analysis ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [April 11, 2017, 12:31pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/43 "2017-04-11T12:31:39Z")
> [@Chronos](#): > > It also makes this an interesting case study for conservatives: It can be cast as a religious case, in which case the standard conservative view would be in favor of Trinity, or it can be cast as a states’ rights case, in which case the standard conservative view would be against them. Republicans only ever care about state’s rights when it suits them. They are more than happy to stomp on state rights when it is something they don’t like (e.g. marijuana legalization). This is akin to their talking point that they are the party of fiscal responsibility that need to stop the tax-and-spend liberals. No they are not but somehow they have sold that idea too. ---
**Author:** ![CandidGamera](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/candidgamera/32/2878_2.png) [@CandidGamera](https://boards.straightdope.com/u/CandidGamera)\ **Post date:** [April 11, 2017, 1:35pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/44 "2017-04-11T13:35:30Z")
> [@Bricker](#): > > On what grounds should they be slapped down, specifically? The Establishment Clause. > [@](#): > > It can’t be “paying no taxes and getting taxpayer money,” because I assume you support food stamps, whose recipients can fall into that category. You think people on Food Stamps pay no taxes of any kind? Do you want me to bombard you with hundreds of contrary cites, or can I spare myself the effort and you the embarrassment? ---
**Author:** ![CandidGamera](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/candidgamera/32/2878_2.png) [@CandidGamera](https://boards.straightdope.com/u/CandidGamera)\ **Post date:** [April 11, 2017, 1:40pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/45 "2017-04-11T13:40:02Z")
> [@Bricker](#): > > I was merely hitting **CandidGamera** ’s softball,“Wow, a Church that feels entitled to taxpayer money despite paying no taxes,” question. False. There was no question in my post. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 11, 2017, 1:53pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/46 "2017-04-11T13:53:01Z")
> [@CandidGamera](#): > > False. There was no question in my post. If you say so. > [@CandidGamera](#): > > The Establishment Clause. Maybe the Establishment Clause doesn’t mean what you think it means. ---
**Author:** ![Human\_Action](https://avatars.discourse-cdn.com/v4/letter/h/ac91a4/32.png) [@Human\_Action](https://boards.straightdope.com/u/Human_Action)\ **Post date:** [April 11, 2017, 1:55pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/47 "2017-04-11T13:55:55Z")
> [@CandidGamera](#): > > The Establishment Clause. Equal treatment for religious and non-religious non-profit organizations is an Establishment Clause violation? How so? Recall that this isn’t a program aimed at churches, or limited to churches, it has an entirely secular purpose. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [April 11, 2017, 2:02pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/48 "2017-04-11T14:02:36Z")
Sure. But here the state maintains that entirely secular purpose in part by denying applications from religious organizations. I think a much more problematic question is whether the state violated Trinity’s rights by approving applications from other religious groups, as indicated in the Eight District’s order, but that portion of the case doesn’t seem to be part of the petition (since it was not pled when it should have been). ---
**Author:** ![CandidGamera](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/candidgamera/32/2878_2.png) [@CandidGamera](https://boards.straightdope.com/u/CandidGamera)\ **Post date:** [April 11, 2017, 2:14pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/49 "2017-04-11T14:14:34Z")
> [@Bricker](#): > > If you say so. If there was a question in my initial post, please provide a cite. ---
**Author:** ![CandidGamera](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/candidgamera/32/2878_2.png) [@CandidGamera](https://boards.straightdope.com/u/CandidGamera)\ **Post date:** [April 11, 2017, 2:22pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/50 "2017-04-11T14:22:50Z")
> [@Human\_Action](#): > > Equal treatment for religious and non-religious non-profit organizations is an Establishment Clause violation? How so? Recall that this isn’t a program aimed at churches, or limited to churches, it has an entirely secular purpose. Giving money or items of value to a Church-affiliated organization is supporting that organization. And its affiliated Church. For a governmental institution to do that violates the separation of Church and State - the government is essentially choosing to provide financial resources to a single church, thereby directly or indirectly promoting that church’s mission and message. (If nothing else, the government is subsidizing the church’s public relations.) If the Church wants government dollars for its playground, then it should divest the playground into a secular charity organization and donate whatever dollars it would have spent on the playground to that secular organization. Then the separate entity would also be eligible for government grants. Note, I am making no prediction as to how the Court will rule, especially with His Illegitimacy joining the other Supremes - I’m sure they can find a way to ignore precedent to help a like-minded organization. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 11, 2017, 2:40pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/51 "2017-04-11T14:40:58Z")
> [@CandidGamera](#): > > If there was a question in my initial post, please provide a cite. What do you mean? I said, “If you say so.” You said so. How could you possibly imagine I was questioning your claim? ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [April 11, 2017, 2:46pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/52 "2017-04-11T14:46:01Z")
Do you guys really need to go back and forth on that, ffs? ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [April 11, 2017, 2:51pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/53 "2017-04-11T14:51:06Z")
> [@rat\_avatar](#): > > The plaintiff claims that there is no “valid Establishment Clause concern” and the state argues that there is. I don’t read the state as arguing that there is a federal establishment clause issue here at all. I think everyone agrees that the federal establishment clause wouldn’t prohibit including religious organization in the rubber playground program. (I think this conclusion is compelled by Mitchell and Agostini, but it’s a somewhat muddled jurisprudence). The “problem” is that Missouri has enacted a stricter “establishment clause.” The question is whether the federal free exercise clause _requires_ neutral treatment of religious and non-religious organizations with respect to the rubber program. I think that you could intellectually consistently distinguish Locke (on the basis that rubber playgrounds are not an "essentially religious endeavor), but I don’t know that I would predict such a result. In any event, I don’t think the state is arguing that they have an establishment clause question. And, if your quote is how the Court framed the question (i.e., assume no valid establishment clause concern), I don’t think they’re going to fight the question. Edit: My point being that I don’t think this is “between Lemon and Locke.” I think it’s finding the line between Everson and Locke. ---
**Author:** ![Human\_Action](https://avatars.discourse-cdn.com/v4/letter/h/ac91a4/32.png) [@Human\_Action](https://boards.straightdope.com/u/Human_Action)\ **Post date:** [April 11, 2017, 2:55pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/54 "2017-04-11T14:55:58Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Sure. But here the state maintains that entirely secular purpose in part by denying applications from religious organizations. We’re talking about playground resurfacing. It’s hard to imagine a more secular activity. Is there some worst-case-scenario you have in mind, wherein the state fails to exclude religious organization from this program? > [@CandidGamera](#): > > Giving money or items of value to a Church-affiliated organization is supporting that organization. And its affiliated Church. For a governmental institution to do that violates the separation of Church and State - the government is essentially choosing to provide financial resources to a single church, thereby directly or indirectly promoting that church’s mission and message. (If nothing else, the government is subsidizing the church’s public relations.) Giving money or items of value to religious organizations does not, by itself, violate the First Amendment. For example, federal Community Services Block Grants. The evaluation criteria aren’t specified in the application, but presumably are unrelated to any religious test - likely, questions about geographic location, how many children have access to or use the playground, and the like. If all organizations are fairly scored on the same, secular, criteria, then the government isn’t singling out or promoting any one church. Instead, the government is responsibly recycling waste rubber. > [@](#): > > If the Church wants government dollars for its playground, then it should divest the playground into a secular charity organization and donate whatever dollars it would have spent on the playground to that secular organization. Then the separate entity would also be eligible for government grants. The grant already requires that the funds be used for the intended purpose, and not a religious purpose. Why is that not enough? ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [April 11, 2017, 4:07pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/55 "2017-04-11T16:07:16Z")
> [@Human\_Action](#): > > The grant already requires that the funds be used for the intended purpose, and not a religious purpose. Why is that not enough? Because money is fungible. Say the church has $1,000 and the government gives them $100 for the playground and they use it for that. They still have $1,000 in the bank instead of $900 if they had to pay for it themselves. Kind of like what Illinois did with its lottery proceeds. They said that all lottery proceeds would be used to fund education in Illinois. Great right? Well, the lottery funneled millions to education and the government just stopped putting millions in they had previously and spent it elsewhere. Plus, it seems to me if the state is paying to improve church property than it is defacto helping that religion (it is now a more attractive thing for potential converts). ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [April 11, 2017, 4:17pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/56 "2017-04-11T16:17:12Z")
> [@CandidGamera](#): > > Giving money or items of value to a Church-affiliated organization is supporting that organization. And its affiliated Church. For a governmental institution to do that violates the separation of Church and State - the government is essentially choosing to provide financial resources to a single church, thereby directly or indirectly promoting that church’s mission and message. (If nothing else, the government is subsidizing the church’s public relations.) You have to consider the flipside though as Scalia did in Locke v. Davey: > [@](#): > > When the State makes a public benefit generally available, that benefit becomes part of the baseline against which burdens on religion are measured; and when the State withholds that benefit from some individuals solely on the basis of religion, it violates the Free Exercise Clause no less than if it had imposed a special tax. > > ``` > That is precisely what the State of Washington has done here. It has created a generally available public benefit, whose receipt is conditioned only on academic performance, income, and attendance at an accredited school. It has then carved out a solitary course of study for exclusion: theology. Wash. Rev. Code §28B.119.010(8) (Supp. 2004); Wash. Admin. Code §250—80—020(12)(g) (2003). No field of study but religion is singled out for disfavor in this fashion. Davey is not asking for a special benefit to which others are not entitled. Cf. Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439, 453 (1988). He seeks only equal treatment–the right to direct his scholarship to his chosen course of study, a right every other Promise Scholar enjoys. > > ``` > > SOURCE: [LOCKE V. DAVEY](https://www.law.cornell.edu/supct/html/02-1315.ZD.html) Essentially the state can neither support OR hinder free exercise of religion. Since this is a generally available public benefit the state cannot pick who does or does not get it based on religion. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [April 11, 2017, 4:30pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/57 "2017-04-11T16:30:38Z")
> [@Human\_Action](#): > > We’re talking about playground resurfacing. It’s hard to imagine a more secular activity. True. And I doubt there is a specific Christian doctrine regarding playground safety. But the school in question is part of the church, not an incidental fundraising endeavor or a school that just happens to be run by a church. We obviously don’t want the state showing up on school playgrounds to see if the kids are being ministered to during recess, right? That would be a classic “excessive entanglement” violation as contemplated in Lemon. [QUOTE=8th Circuit] It is a ministry of Trinity Church that teaches a Christian world view and incorporates daily religious instruction into its programs. [/QUOTE] It’s a ministry. In other words, everything the school does - even activities that are not inherently religious, like playtime, _is religious_. Call it the unintended consequence of Hobby Lobby if you like. ---
**Author:** ![CandidGamera](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/candidgamera/32/2878_2.png) [@CandidGamera](https://boards.straightdope.com/u/CandidGamera)\ **Post date:** [April 11, 2017, 5:02pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/58 "2017-04-11T17:02:19Z")
> [@Whack-a-Mole](#): > > Essentially the state can neither support OR hinder free exercise of religion. Since this is a generally available public benefit the state cannot pick who does or does not get it based on religion. That’s a dissent, though, it has no force of law or precedent. And “refusing to give free stuff to a church” is not “hindering” that church in any meaningful sense. What, are we damaging its ability to compete with other free playgrounds? Come on. ---
**Author:** ![CandidGamera](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/candidgamera/32/2878_2.png) [@CandidGamera](https://boards.straightdope.com/u/CandidGamera)\ **Post date:** [April 11, 2017, 5:06pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/59 "2017-04-11T17:06:37Z")
> [@CarnalK](#): > > Do you guys really need to go back and forth on that, ffs? We do not, no. Though it is sometimes difficult to resist getting sucked into the game. ---
**Author:** ![Human\_Action](https://avatars.discourse-cdn.com/v4/letter/h/ac91a4/32.png) [@Human\_Action](https://boards.straightdope.com/u/Human_Action)\ **Post date:** [April 11, 2017, 5:19pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/60 "2017-04-11T17:19:14Z")
> [@Whack-a-Mole](#): > > Because money is fungible. > > Say the church has $1,000 and the government gives them $100 for the playground and they use it for that. They still have $1,000 in the bank instead of $900 if they had to pay for it themselves. > > Kind of like what Illinois did with its lottery proceeds. They said that all lottery proceeds would be used to fund education in Illinois. Great right? Well, the lottery funneled millions to education and the government just stopped putting millions in they had previously and spent it elsewhere. > > Plus, it seems to me if the state is paying to improve church property than it is defacto helping that religion (it is now a more attractive thing for potential converts). It looks to me like the state is paying to keep tires out of landfills and illegal dumps. That is the stated purpose of the program, not an urge to improve the state’s playgrounds. Something must be done with the tires if they aren’t to be merely tossed in a landfill. > [@Really\_Not\_All\_That\_Bright](#): > > True. And I doubt there is a specific Christian doctrine regarding playground safety. But the school in question is part of the church, not an incidental fundraising endeavor or a school that just happens to be run by a church. We obviously don’t want the state showing up on school playgrounds to see if the kids are being ministered to during recess, right? That would be a classic “excessive entanglement” violation as contemplated in Lemon. > > It’s a ministry. In other words, everything the school does - even activities that are not inherently religious, like playtime, _is religious_. Call it the unintended consequence of Hobby Lobby if you like. I just don’t see how the religiosity of the school should have any bearing on whether they are eligible; the stated requirements are a) being a non-profit and b) having a playground. That gets you to a place where the state is neutral toward religion, as opposed to actively hostile. [Previous page](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994.md?page=2) [Next page](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994.md?page=4)